This Month Only! >> $20 off and a FREE SHRM tote with your membership and code TOTE2018!
Sign up for free email newsletters and get more SHRM content delivered to your inbox.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Build competencies, establish credibility and advance your career—while earning PDCs—at SHRM Seminars in 12 cities across the U.S. this spring.
#SHRM18 will expand your perspective – on your organization, on your career, and on the way you approach HR. Join us in Chicago June 17-20, 2018
Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.
Legal Trends: The Risk of Intentional Torts
Employers may face an unexpected liability for workplace offenses.
Upon arriving at work one morning, you find Jennifer, a longtime member of your company’s sales force, waiting in your office with tears in her eyes. She has come to tell you that her boss, Richard, has been sexually harassing her for the past six months.
Jennifer says it started with invitations to go out for drinks or dinner after work. It escalated when, on several occasions, Richard put his hands on her shoulders and began giving her a massage. Jennifer tells you that once, despite her protests, Richard would not let her get up from her chair.
A few months ago, Richard began to accompany Jennifer on out-of-town business trips for the first time in many years. Jennifer says, on a recent trip, Richard came into her hotel room, stood by the door and refused to let her leave until she agreed to go on a date with him later that night.
Jennifer eventually told Richard she was not romantically interested in him. After that, Richard started giving her bad performance reviews and spreading false rumors about her both within the company and among customers.
As an HR professional, you undoubtedly are familiar with the liability your company might face if Jennifer brought a sexual harassment lawsuit under Title VII of the Civil Rights Act of 1964 or a parallel state or local anti-discrimination statute. What you may not realize, however, is the extent to which Richard’s conduct also may have exposed your company to even greater liability under common-law tort causes of action.
“Tort” is a catch-all legal term that encompasses various intentional or accidental civil wrongs against a person or property. Based on the events Jennifer has described, she could pursue claims against the company under intentional tort theories ranging from assault and battery to false imprisonment, invasion of privacy, defamation and intentional infliction of emotional distress.
And, in contrast to claims filed under Title VII, there may be no limit to the amount of damages employers may be forced to pay if they lose an intentional tort case. As a result, these cases are very attractive to plaintiffs’ attorneys who typically work on a contingent fee basis.
What’s more, employers that have successfully compelled employees to arbitrate their discrimination claims may find courts unwilling to order employees to arbitrate tort claims. While courts continue to favor arbitration as a mechanism for resolving workplace disputes, they will engage in a fact-specific inquiry into the language of the arbitration clause, the type of claim involved, the nexus between the tort and the individual’s employment, and the sophistication and expectations of the parties in determining whether to require an employee to arbitrate the claim.
At the same time, employers can be held vicariously liable—that is, legally responsible for the acts of another—for torts committed by their employees within the course of their employment. Incidents that arise out of work-related disputes or interactions, or out of employees’ performance of their job responsibilities, are most likely to lead to employer liability.
Not surprisingly, the fact-specific nature of these inquiries often causes courts to struggle in determining when it is appropriate to impose liability on the employer. Even if a company believes it has a strong defense against vicarious liability for its employees’ acts, it can be difficult to convince a court to dismiss such a claim prior to trial.
In the meantime, of course, the costs of mounting a defense can quickly escalate.
In light of the growing trend toward employees filing tort claims along with (or even in place of) their discrimination lawsuits, and the risk of the uncapped jury verdicts that may ensue, you should be aware of the types of intentional workplace tort claims that might be brought against your organization. Next, incorporate information on these claims and the situations that might give rise to them into your employment law training programs for your managers and supervisors. Knowledge is the first step toward prevention.
Limitations on Liability
This discussion focuses on intentional—as opposed to negligent—workplace torts because an employer’s liability to its employees for its negligent acts generally is governed, and limited, by a state’s workers’ compensation statute. Nevertheless, employers should be aware that certain workplace torts based on an employer’s alleged negligence—such as negligent hiring or negligent supervision—are not always pre-empted by a state’s workers’ compensation law. Those claims, however, are beyond the scope of this discussion.
A small number of states have enacted broad-based workers’ compensation laws that provide the exclusive relief for all injuries to employees arising in the workplace, including both unintentional and intentional torts. In these jurisdictions (e.g., Pennsylvania, Massachusetts, Colorado and Georgia), employees are precluded from bringing a tort cause of action for their workplace injuries and must instead rely exclusively on the more limited remedies available through the workers’ compensation system.
Most states allow at least some form of tort recovery for an employee’s workplace injuries; however, the range of permissible tort claims can vary considerably from state to state. For example, many states permit employees to bring private lawsuits for injuries arising from their employer’s deliberate, willful or intentional acts, but they may establish different standards for the types of conduct plaintiffs must allege to show the requisite degree of intent.
In some jurisdictions (e.g., California, Florida, Texas, New Jersey, Connecticut and Ohio), employees can escape the confines of the workers’ compensation system if they can show that their employer engaged in conduct that it knew was “substantially certain” to cause the employee’s injury.
Other jurisdictions (e.g., New York, Indiana and Michigan) have established a heightened threshold that requires employees to show both that the employer intended the act and intended the injury by demonstrating that the employer had knowledge that the problem was “certain to occur” and did nothing to prevent it.
For these reasons, it is important, to be aware of the nature and breadth of the workers’ compensation statute that applies in the jurisdictions in which your company does business. (And, remember that despite any limits on the type of tort claims an employee may bring against an employer, the exclusivity provisions of workers’ compensation laws do not bar tort claims brought by third parties—such as customers or vendors—who are injured by the actions of one of your employees.)
Common Intentional Tort Claims
Here are examples of some of the most common intentional tort claims that employees bring against their employers.
Assault and battery. Although the torts of assault and battery often occur in conjunction with one another, they are separate legal claims. A claim of battery involves intentional conduct that constitutes a “harmful or offensive contact with a person.” A claim of assault arises from conduct that is intended to and has the effect of exciting an immediate apprehension of a harmful or offensive contact.
So, for example, employees who are subjected to unwanted touching can bring battery claims; employees who fear such unwelcome contact by a co-worker or supervisor can assert assault claims. And either claim could include an additional underlying harassment claim. In one recent case, a sales associate sued her former employer for sexual harassment and battery after her supervisor grabbed and squeezed her buttocks and stated that he wanted to have sex with her in the back room. In denying the employer’s motion to dismiss the battery claim, a federal trial court in Florida observed that employers who allow a sexually harassing environment to exist in the workplace may be liable for any torts arising out of that atmosphere.
Intentional infliction of emotional distress. A claim for assault requires apprehension of an immediate injury, but a person who has been threatened and suffers apprehension of a future injury may be able to bring a successful claim for intentional infliction of emotional distress.
An employer may be subject to liability for intentional infliction of emotional distress (sometimes referred to as the tort of “outrage”) where its “extreme or outrageous conduct” intentionally or recklessly causes a person to suffer “severe emotional distress.”
Not surprisingly, employees subjected to harassment, retaliation or other conduct that violates federal, state or local anti-discrimination laws often assert emotional distress claims. However, such a claim also can be brought as a separate lawsuit predicated on intolerable working conditions, even absent the assertion of statutory-based discrimination claims under federal, state, or local law.
Indeed, the Texas Supreme Court recently affirmed a jury verdict of more than $300,000 in favor of three employees who sued their employer for intentional infliction of emotional distress. The employees claimed that their supervisor, a former sergeant in the U.S. Army, displayed an abusive and dictatorial manner, used vulgar and threatening language, and intentionally humiliated and embarrassed them in the workplace.
Defamation. Defamation involves the unprivileged publication of false and injurious information to one or more third parties. The tort of defamation consists of two sub-parts: libel, which is the written publication of defamatory statements, and slander, which is the oral publication of defamatory statements.
Defamation claims frequently are asserted by employees who believe that their employer disseminated false information about them to other employees or to a prospective employer. These claims often arise when an employer discusses an employee’s performance, or the reasons for an employee’s termination.
It also is increasingly common for employees to bring defamation claims in response to an employer’s disclosure of information concerning its investigation into harassment, theft or other alleged wrongdoing.
Courts also have recognized defamation claims predicated on a theory of “compelled self-publication.” Such a claim may arise where an employer has reason to believe that the person defamed will be under a strong compulsion to disclose the contents of the defamatory statement to a third party.
For example, compelled self-publication may be foreseeable in a situation where a former employee must disclose to a prospective employer the contents of his personnel file in order to explain the circumstances giving rise to a negative job reference.
Privacy torts. The right to privacy—often referred to as the right to be “left alone”—has given rise to a number of different tort causes of action that may protect employees in the workplace. These claims generally fall into two categories.
The first is designed to safeguard an individual’s interests in preventing the dissemination of confidential information. Such claims have arisen from an employer’s unjustified disclosure of an employee’s medical or personnel records, for example.
The second type of claim is designed to protect an individual from being observed or intruded upon while conducting personal activities. Often referred to as “intrusion upon seclusion,” this type of privacy claim applies to both an individual’s body and personal space or concerns.
Employers have faced intrusion upon seclusion claims for video- or audio-taping their employees in a manner deemed offensive to a reasonable person. For example, in one recent Illinois case, a group of employees sued their employer for surreptitiously videotaping them receiving medical treatment in a nurse’s office at their facility.
Even though the employer had installed a camera in the room to protect its legitimate interest in catching a thief, the court reasoned that the type of camera that the employer used exceeded the means necessary to observe the theft of items from the desk in that office. As a result, the court held that the case should proceed to trial for a jury to decide whether the employer’s actions were “highly offensive or objectionable” to a reasonable person.
Public policy claims. Given recent events involving companies like Enron and WorldCom, employers are increasingly facing tort claims by employees who contend that they were wrongfully discharged in violation of a fundamental public policy. Generally viewed as an exception to the employment-at-will rule, these common-law claims often provide a recourse for employees who otherwise cannot state a claim under the anti-discrimination or whistleblower protection laws. Employees often assert public policy tort claims alleging that they were terminated for refusing to violate the law, for performing a statutory obligation, for exercising a statutory right or for reporting an alleged violation of a statute of public importance.
Additional workplace torts. Although somewhat less common, employers also should be aware of the existence of numerous other intentional tort causes of action, such as false imprisonment (e.g., a supervisor restricts another employee’s movement during the course of making sexual advances), fraudulent inducement or fraudulent misrepresentation (e.g., an employer convinces an employee to quit her job and relocate and then fires the employee shortly thereafter), and tortious interference with contract or prospective contractual relation (e.g., an employer interferes with a business relationship that an employee has or reasonably expects to have with a third party).
Back to Jennifer And Richard
Thinking back to our initial hypothetical, it should now be apparent how Richard’s conduct has exposed his employer to a wide range of tort liability in addition to the company’s more obvious liabilities under anti-discrimination laws.
By giving Jennifer massages against her will, and blocking her exit from the hotel room, Richard has subjected the company to potential claims of assault and battery. A jury could also find that those same actions could give rise to tort claims for false imprisonment and invasion of privacy.
In responding to Jennifer’s statement of disinterest by giving her poor performance reviews and spreading rumors about her, Richard also exposed the company to a defamation claim. Finally, given the totality of Richard’s conduct, it is not hard to imagine Jennifer pursuing a claim for intentional infliction of emotional distress.
Employers are subject to so much federal, state and local regulation that it is easy to overlook the broad range of common-law claims that might also arise out of the employment relationship.
Be sure to review not only the scope of relevant workers’ compensation laws in your state, but also any applicable insurance policies your company may have (including any employment practices liability insurance policies) to determine if coverage exists for workplace tort claims. An informed human resources team, effective supervisory training and a corporate commitment to best practices in employee relations and to a harassment-free workplace will go a long way toward preventing intentional workplace torts.
Author’s note: This article should not be construed as legal advice or as pertaining to specific factual situations.
Paul Salvatore is a partner and Andrew M. Gutterman is a senior associate in the New York office of Proskauer Rose LLP. The law firm represents employers in all aspects of labor and employment law. Melissa Rosenberg and Dylan Pollack, associates with the firm, also assisted in the preparation of this article.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Please sign in as a SHRM member before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
SHRM Annual Conference & Exposition
SHRM’s HR Vendor Directory contains over 10,000 companies